NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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NO. 09-4119

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JOHNNY MACEDO-DIAZ,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

 Respondent

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On Petition for Review of an Order of the

Board of Immigration Appeals

No. A071-488-212

Immigration Judge: Hon. Margaret Reichenberg

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Submitted Pursuant to Third Circuit LAR 34.1(a)

November 2, 2010

BEFORE: SCIRICA, STAPLETON and ROTH,

Circuit Judges

(Opinion Filed:11/5/2010 )

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OPINION OF THE COURT
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STAPLETON, Circuit Judge

On May 27, 2009, nearly fifteen years after the order of removal, petitioner filed a 

motion to reopen the removal proceedings in order to seek cancellation of removal. The 

only statement in petitioner’s brief to the IJ regarding his failure to appear stated that he 

“failed to appear in the Immigration Court because he was young, he became confused 

about the date, and because he was afraid to go to Court.” App. at 151. Petitioner’s brief 

neither alleged facts nor raised arguments relating to the service of the notice or his 

:

Petitioner is a native and citizen of Peru who entered the United States without 

inspection on or about April 30, 1989. He here seeks review of a decision of the BIA 

affirming an IJ’s denial of his motion to reopen his removal proceedings.

On March 12, 1992, petitioner was personally served with an order to show cause 

at a date and time to be thereafter set why he should not be removed. On that occasion, 

he provided the INS with his address: 19 Brook Street, Mahwah, NJ 07430. The INS 

sent notices to him at that address via certified mail on February 24, 1994; April 5, 1994; 

April 29, 1994; July 1, 1994; and July 19, 1994, advising him of hearings scheduled 

before an IJ. Hearings were scheduled for April 24, 1994; July 18, 1994; and August 5, 

1994. Each notice was returned as undeliverable because the addressee had moved and 

failed to leave a forwarding address. Petitioner did not appear at any of the hearings, and 

he was ordered removed in absentia on August 5, 1994.
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change of address. On June 24, 2009, the IJ denied the motion to reopen, concluding as 

follows:

Based on his last known address, this Court properly issued 

and served on Respondent the five hearing notices sent by 

certified mail with return receipt. All the hearing notices 

were returned to this Court only because Respondent had 

moved, and he left no address. By law, Respondent was 

legally obligated to immediately notify this Court as to any 

changes or corrections to the “19 Brook Street” address. 

Matter of Grijalva, 21 I. & N. Dec. at 33; see INA §§ 

242B(a)(1)(F)(i)-(ii),(4),(c)(1)-(2). Respondent failed to meet 

his legal obligations.

App. at 8 (emphasis in original).

On appeal, the BIA affirmed the IJ’s “determination that the respondent failed to 

notify the Immigration Court of his change of address, and that service of the notice of 

deportation hearing was proper.” App. at 5. While the BIA acknowledged that there may 

have been no actual receipt of notice, it held that the respondent was ineligible for 

rescission of his in absentia order of removal because he had thwarted delivery of notice 

by relocating and failing to provide a change of address.

In denying reopening, the BIA further noted that petitioner had not asserted in his 

original motion that he actually failed to receive notice of the August 1994 hearing and 

that, while his brief on appeal had stated that he had moved away from the Brook Street 

address and had advised the Immigration Court, the administrative record was devoid of 

evidence of an address change notification of any kind.

We will deny the petition for the reasons given by the BIA. See 8 U.S.C. § 

1252b(a)(1)(F)(ii), (c)(2) (1992) (requiring that “the alien must provide the Attorney 
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General immediately with a written record of any change of the alien’s address,” and 

providing that “written notice [by certified mail] shall be considered sufficient if provided 

at the most recent address provided”);1 Maghradze v. Gonzales, 462 F.3d 150, 153-55 (2d 

Cir. 2006) (“[E]ven assuming that an alien could rebut the presumption that properlyprovided notice was actually received, the alien is deemed to be in constructive receipt of 

properly-provided notice – and hence ineligible for rescission of his in absentia order of 

removal – if he thwarted delivery . . . by relocating and failing to provide a change of 

address.”); Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009) (holding that 

where an alien’s “failure to receive actual notice of the time of his postponed hearing was 

the result of not complying with his obligation to keep the immigration court apprised of 

his current mailing address[,] [s]uch a failure is grounds for denying rescission of a 

removal order”); Sabir v. Gonzales, 421 F.3d 456, 459 (7th Cir. 2005) (“An alien should 

not be able to make himself unreachable, and then later ask to have his case reopened 

because he did not receive notice.”).2

 1 Because petitioner was placed in proceedings prior to the enactment of the Illegal 

Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1252b 

applies to his case. See Luntungan v. Attorney Gen., 449 F.3d 551, 556 (3d Cir. 2006)

(“The old statute continues to apply to aliens who were placed in proceedings before 

April 1, 1997, the effective date of IIRIRA.”).

2 The holding of the BIA, and those of our sister Courts of Appeals, are not 

inconsistent with our decision in Santana Gonzalez v. Attorney General, 506 F.3d 274 

(3d Cir. 2007). In Santana Gonzalez, the hearing notices were sent by regular mail and 

were not returned. The petitioner claimed non-delivery. There accordingly was a dispute 

of fact as to whether the petitioner had received the notices. The IJ and BIA denied the 

petitioner’s motions to reopen the proceedings and rescind the removal order. In the 

course of doing so, they concluded that she had failed to rebut the “presumption of 
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Petitioner faults the BIA for failing to analyze whether there were “exceptional 

circumstances” responsible for his failing to attend. However, where the motion to 

reopen has been filed more than 180 days after the removal order was entered, 

“exceptional circumstances” will not justify rescission of an in absentia removal order. 8 

U.S.C. § 1252b(c)(3)(A) (1992).

Also contrary to petitioner’s contentions, the BIA did not engage in impermissible 

fact finding when it relied on the absence in the administrative record of any evidence of 

a change of address notification in affirming the determination of the IJ. Nor do we find 

any violation of petitioner’s rights under the due process clause. The only relief 

petitioner currently seeks is cancellation of removal. Due process does not extend to a 

hearing for an alien on the merits of discretionary relief. Hernandez v. Gonzales, 437 

F.3d 341, 345-46 (3d Cir. 2006).

Accordingly, we will deny the petition for review.

 

effective delivery.” We granted the petition for review, holding that the presumption 

applied was appropriate for certified mail cases only and that petitioner should have been 

held to a lesser burden in her effort to rebut the presumption that arises from dispatch of 

notice by regular mail. We remanded for further proceedings. At the conclusion of our 

opinion, we limited our ruling to the burden of rebutting the presumption of effective 

delivery in a regular mail case and expressly reserved for the IJ’s consideration the effect, 

if any, of a failure to comply with “the clear requirement” of providing notice of a change 

of address. Id. at 281. Here, there is no dispute that the notices never reached petitioner, 

and the IJ and BIA took into account the requirement that petitioner provide notice of a 

change of address.